A pillar of Australia's democratic life

This week's celebration of the 100th anniversary of the High Court of Australia has provided an opportunity to reflect upon the role of the court, which has grown steadily in stature, especially since the abolition of appeals to the Privy Council in 1986, as the ultimate interpreter of the nation's laws. In an address to the court, Prime Minister John Howard remarked upon what he described as the "three great pillars" of Australia's democratic life: a vigorous parliamentary system, a strong, independent and incorruptible judiciary and a free and sceptical media. Over the years many politicians have chosen to criticise, and sometimes even savagely attack, the judiciary for supposed interference with the intentions of parliamentary law-makers. Such accusations typically rest on the assumption that courts are not supposed to "make" law: a rhetorically appealing line to some, but false nonetheless. The role of appellate courts, especially the High Court, is to resolve disputed questions, and it is inevitable that in the process of doing so they will make law. The common law tradition upon which Australia's legal system continues to rely heavily is the product of judicial reasoning, and judicial interpretation of statute law is an extension of the law-making process. The High Court, in its rulings on bank nationalisation, native title, the Tasmanian dams and other landmark cases, has proved itself adept at both the interpretation of statues and the development of common law.

In his address to the court, Mr Howard noted the enormous contribution that its judgements have made to the shaping of Australian life, and the necessity of an independent judiciary for upholding the rule of law and constitutional democracy. There are some who see the appointment of Philip Ruddock as the Government's senior legal officer as a challenge to the principles Mr Howard outlined in his speech. During his time as immigration minister, Mr Ruddock was a trenchant critic of the federal courts. Indeed, a former chief justice of the High Court, Sir Gerard Brennan, this week criticised Mr Ruddock's attacks on the judicial process as "completely inconsistent with the function of an attorney-general". The judiciary's concern for independence is so fundamental that it is rare even for retired judges like Sir Gerard to make such comments. That he chose to do so can be taken as an indicator of the apprehension that may be felt about Mr Ruddock in the legal profession. It will be incumbent upon Mr Howard, if he wishes to ensure that the tenor of his remarks to the court is upheld, to rein in the sort of attacks on the judicial process that ministers like Mr Ruddock have made in the past. For his part, as Sir Gerard suggests, Mr Ruddock will need to temper his comments about court decisions and be prepared publicly to defend the role of the High Court.